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Opinion | Vivek Krishnamurthy

The Senate, not the president, should choose the next FBI director

The seal of the Federal Bureau of Investigation, at the facade of the J. Edgar Hoover FBI Building, in Washington, D.C.JIM LO SCALZO/EPA

Since President Trump’s surprise firing of FBI Director James Comey on Tuesday evening, there’s been a lot of talk about appointing a special prosecutor to continue investigating Russian interference in the 2016 election, but little discussion of who should be the next FBI director.

Important as it is to have an impartial investigation of whether a foreign power tilted the last election, it’s even more important that the nation’s next top law enforcement official be a woman or man of the utmost integrity who has the courage to stand up to an imperious president.

But how can we trust this president, of all people, to appoint someone who will be fearless and dispassionate in investigating every credible allegation of criminal wrongdoing, especially if the evidentiary trail leads to the White House? The Founding Fathers gave the president the power to appoint executive branch officials and the Senate the duty to provide its “Advice and Consent” on the president’s picks. So in the usual course of events, Donald Trump will nominate the next FBI director, and his nominee will either be confirmed or rejected by the Senate.

At this dangerous moment in our nation’s history, it’s time for the Senate to act on its duty to advise. Hence, instead of ceding the initiative to the president, senators — especially members of the Judiciary Committee — should work across party lines to draw up a short list of highly qualified candidates to serve as the next FBI Director.

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Senators could guarantee the president that if he chose a name from their short list, his pick would be quickly confirmed. This would prevent a dangerous leadership vacuum from compromising the FBI’s mission of protecting the American people from crime and terror. Should the president opt to nominate someone else, however, his pick would face the utmost scrutiny in the Senate, given the natural suspicions that would arise about potential self-serving motivations that might ultimately prevent the nominee from garnering 51 votes for confirmation.

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Having the Senate constrain the pool of potential candidates from which a president may nominate someone may, at first glance, seem at odds with our constitutional traditions. Yet this is precisely how most federal district judges and US attorneys have come to be where they are. When a vacancy for one of these positions opens, the White House routinely chooses from lists of well-qualified candidates that senators from the state in question maintain as a matter of course. There’s no principled reason why other presidential nominees couldn’t be drawn from similar Senate short lists — especially when the nation finds itself at what some describe as the precipice of a constitutional crisis, with real fears that the executive branch is compromised by its ties to a foreign power.

The biggest benefit of having the Senate identify credible and independent candidates to serve as the next FBI director is that it obviates the need for a special prosecutor to investigate Russian meddling in last fall’s election. For all the recent enthusiasm behind this idea, our history shows that appointing inquisitors whose sole purpose is to investigate just one person or event never ends well for anyone. After the Clinton administration’s experience with Kenneth Starr, Democrats should be just as reluctant to resurrect this idea as Republicans will be to vote to investigate a president from their own party. By contrast, Senate Republicans and Democrats alike have every reason to ensure that the next head of the FBI is someone the American people can trust in wielding the bureau’s mighty investigatory powers, already trained on this issue.

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James Madison, the architect of the Constitution and our fourth president, described the Senate as “a necessary fence” that would protect “the people against their rulers.” Few times in our history has the Senate’s role been as important as now, in ensuring that the next head of the FBI is fair and fearless in investigating all crimes and misdemeanors — including those that might implicate our 45th president.


Vivek Krishnamurthy is a lecturer-in-law and clinical instructor at Harvard Law School.